A Little Less Conversation

November 29, 2007

The wrong-headed movement to force judicial nominees to open up more in Senate confirmation hearings.

Sen. Ted Kennedy has drawn a line in the sand. Writing
in the The American Prospect on
November 19, the liberal lion declared that “the Senate needs to reform the
process by which it considers Supreme Court nominees.” The first two years of
service by Chief Justice John Roberts and Justice Samuel Alito, he argues, degrade
“the commitment to open-mindedness, modesty, and compassion that they professed
during their confirmation hearings.” And the senator’s not going to take it any
more: “General platitudes are no substitute for concrete statements about a
nominee’s constitutional views. The Senate should require more from Supreme
Court nominees”--specifically, more written information and more answers to
more questions. In the future, he says, “Questions about decided cases should
be at the heart of confirmation hearings…. It does not compromise the integrity
or impartiality of the judiciary to require nominees to tell the Senate what
they think about specific legal issues.”

Neither Kennedy’s proposal nor his passionate rhetoric on
this subject are really new. Senator Charles Schumer has long argued publicly
that ideology is a legitimate consideration in senatorial consideration of
nominees and, more controversially, that interrogating nominees about past
cases is an appropriate means of gauging their ideological and philosophical
commitments. In practical terms, this is the standard that many Democrats
applied--or at least tried to apply--in the Roberts and Alito cases, in which
they demanded that the nominees satisfy them on substantive questions or incur
their “no” votes. They grilled both nominees ten ways from Sunday about
abortion, as though if they just asked the question the right way, both would
promise to reaffirm Roe v. Wade. But
the strategy didn’t work, the nominees being quicker on their feet than the
senators and adept at speaking in appealing sounding generalities that gave away
little about their true jurisprudential views. Instead of concluding that the
project of forcing live testimony from nominees guarantees slippery evasions
and meaningless pabulum and should therefore be abandoned, Kennedy has
concluded the opposite: the Senate needs to force nominees to say more. And he has come up with a list of
“procedural reforms”--new vays to make zem talk.

I have argued elsewhere
that live nominee testimony gets the public little useful information while
putting nominees in an impossible position--demanding that they say things as a
condition of confirmation that no honorable nominee could ever declare in good
conscience. The modern tradition of live testimony by nominees has an ugly
history: It began in the wake of Brown v.
Board of Education, when segregationist senators decided they wanted a
chance to put nominees on the spot as a way of putting pressure on them not to
enforce the 14th Amendment. Before that, senators heard testimony about the nominees, but they generally
didn’t hear from them. And guess
what? They were, roughly speaking, as educated about nominees then as they are
now

But let’s leave aside the philosophical question of
requiring public testimony. There’s a very practical reason for
liberals--particularly now, when everyone is laying odds on a Democratic
presidency in a year--to resist the siren song of ratcheting up the pressure on
nominees: Nobody liberals would want to see on the Supreme Court could easily withstand
the “more searching and honest” process Kennedy demands for conservatives.

Liberals often talk as though publicly probing the souls of
nominees would out conservatives for the dinosaurs they really are and prevent
their confirmations. I suspect the reality is quite different. Liberal nominees
would be at least as vulnerable as conservatives to a process that genuinely
demanded their candor and explicitness on cases--and probably far more so.

That reality is masked now because, since the early 1970s,
Republican senators have generally questioned nominees less aggressively than
their Democratic colleagues have. (There have been no major confirmation fights
in those years involving Democratic nominees.) But that will change the more
Kennedy’s and Schumer’s standards garner acceptance in today’s Washington, where
polarization reigns. The more Republican senators condition their votes on the
answers Democratic nominees give them in hearings, the more Democrats will
regret forcing this door open.

The reason is that liberal jurisprudence today is, generally
speaking, more counter-majoritarian more often than is conservative
jurisprudence. Liberals have long asked the courts to take positions that are
deeply unpopular politically. For all the lefty anxiety about the current
court, Democrats have never run successful political campaigns based on the
Supreme Court’s future. Richard Nixon, by contrast, campaigned in 1968 against
the liberalism of the Warren Court
and its coddling of criminals. And to this day, liberal judges display greater
solicitude for the rights of the accused than their conservative brethren. Do
Democrats really want the Senate Judiciary Committee to force every judicial
nominee to say what he thinks of every opinion in which a nasty guy got off
because of police error or some technical violation of his rights?

It gets worse. Imagine a highly qualified liberal forced to
answer the following:

“The Supreme Court has
prohibited the government from indefinitely detaining dangerous criminal aliens
slated for deportation but whose countries refuse to take them back. Do you
think the justices were right to force the release of hundreds of violent criminals
with no right to be here into our communities?”

“The Supreme Court recently held
that government can take away your house and give it to a big company for
purposes of economic development. Do you believe that Americans really have no
constitutional right protecting them from such abusive sweetheart deals?”

“Do you agree with the Supreme
Court’s ruling striking down a ban on simulated child pornography, using
computer images of children engaged in sex?”

I could go on. The point is that a nominee who defended
these rulings in sworn testimony--and there is much to be said for all three of
them--would quickly render himself more difficult to confirm than a
conservative forced to acknowledge that he disliked Roe v. Wade, favored the states in questions of federalism, opposed
affirmative action, and had a libertarian economic sensibility that sometimes
infused his view of constitutional law. Even Roe, that favorite liberal stand-by, could quickly become a thorn
in the side of pro-choice nominees. In their quieter moments many liberal
scholars recognize that the decision is a mess. Make a potential jurist say so
in public and she’ll have trouble retaining the support of the party that
nominated her. Yet unless she’s willing to overturn Roe, the concession won’t win her friends on the conservative side.

Kennedy’s right about one thing: The current system provides
nominees a huge incentive for obfuscation of their true beliefs. It has become
a kind of civic kabuki dance, in which we go through a stylized conversation
full of faux questions and faux answers and faux outrage at the faux answers.
Yet the fauxness is the only thing that prevents the entire system from
rendering everyone unacceptable.

In a sharply divided country, after all, you can make almost
anyone look extreme if you make him take a stand on enough Supreme Court
opinions. Letting nominees keep silent is a kind of escape valve which protects
not only their independence once they join the judiciary, but also the
political system itself, which would otherwise have to vote down--or filibuster--almost
all of them. The simple reality, which we have to accept, is that the live
nominee testimony cannot give us a
good window on what sort of justice someone is going to be over time. The right
answer is to spend more time evaluating people’s public records and less time
grilling them in public.

It doesn’t take a long political memory to realize that it
was the liberal nominees the Judiciary Committee used to torture. And back in
1967, when President Lyndon Johnson nominated Thurgood Marshall to the Supreme
Court, a young senator objected to the abusive questioning of the nominee by
segregationist senators bent on portraying him as both radical and ignorant.
“[I]n advising and consenting ... we are challenged to ascertain the
qualifications and the training and the experience and the judgment of a
nominee,” he said. “[I]t is not our responsibility to test out the particular philosophy, whether we agree or disagree, but his own good judgment,
and being assured of this good judgment, that we have the responsibility to
indicate our approval or, if we are not satisfied, our disapproval.”

The senator, you’ll probably have guessed, was Ted Kennedy.
Unfortunately, the next time a nominee like Marshall gets raked over the coals by hostile
senators, Kennedy will have no standing to object. Indeed, who will be left to
defend that nominee’s silence or the “general platitudes” under which he or she
will seek cover?

BENJAMIN WITTES is

a Fellow and Research Director in Public Law at The Brookings Institution and
a member of the Hoover Institution Task Force on National
Security and Law.